22CA1311 Peo v Madison 07-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1311 City and County of Denver District Court No. 21CR4630 Honorable Martin F. Egelhoff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anthony G. Madison,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE LIPINSKY Pawar and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 10, 2025
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Daniel Kent, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Anthony G. Madison appeals his convictions on three counts
of attempted extreme indifference murder. We affirm.
I. Background
¶2 A jury could have reasonably found the following facts from
the evidence introduced at trial.
¶3 Madison and Kailea Leaverton lived in the same apartment
building. Madison told Leaverton that he “wanted to have sex” with
her, but she rebuffed him. Madison responded by saying that “he
didn’t want to be [her] friend” and took action against her. He wrote
expletives and derogatory language on Leaverton’s apartment door,
sent her a demeaning letter, and wrote insulting words and
profanity on the parking lot directly below Leaverton’s bedroom
window.
¶4 Leaverton told Brandon Hardin, her boyfriend, about the
messages and asked Hardin to “talk to” Madison because “there
was nothing [she] could do or to say to [him] for him to leave [her]
alone.”
¶5 On July 28, 2021, Leaverton, Hardin, and Joshua Moore, a
mutual friend, ran errands in Moore’s truck. After the three
completed their errands, Hardin and Moore dropped off Leaverton
1 in the alley behind her apartment building. When Madison “came
around [a] corner,” Hardin said, “[T]his is our opportunity to go talk
to him,” about the messages he left for Leaverton.
¶6 Hardin got out of the truck, approached Madison, and “told
[him] to leave [Leaverton] alone.” During the interaction, Hardin
“was not aggressive or rude.” Leaverton told Madison that she did
not like his messages and “wanted to be married” to Hardin.
Neither Leaverton nor Moore nor Hardin was armed at the time.
¶7 Madison replied, “Okay, [Leaverton]. I’ll leave you alone.”
Leaverton, Hardin, and Moore then “turn[ed] to walk away.”
Madison “walked a couple of feet . . . back the way he came” but
then spoke Leaverton’s name. When Leaverton turned around, she
saw that Madison was aiming a gun at her. He fired once. The shot
missed. Madison then pointed the gun at Moore and said, “You’re
not so tough now, are you, motherfucker?”
¶8 Leaverton testified that Hardin thought Madison had shot her
and told Madison, “You shot my wife.” Based on this
misunderstanding, Hardin “got a gun” from the truck to defend
Leaverton. Madison and Hardin “got into a shootout.” No one was
shot, however. Surveillance video captured the incident.
2 ¶9 Madison was arrested and charged with three counts of
criminal attempt to commit murder in the first degree (after
deliberation) for his actions against Hardin, Leaverton, and Moore
(the victims); three counts of criminal attempt to commit murder in
the first degree (extreme indifference) for his actions against the
victims; one count of possession of a weapon by a previous offender
(POWPO); and six counts of crime of violence with the use of a
deadly weapon that corresponded to the six attempted murder
counts.
¶ 10 The prosecution filed, and the court granted, a pretrial motion
to dismiss the three attempted murder in the first degree (after
deliberation) counts and the three corresponding crime of violence
¶ 11 Among other witnesses, Leaverton and Madison testified at
trial. (Hardin died before trial.) Defense counsel conceded that
Madison was guilty of POWPO but argued to the jury that Madison
was not guilty of attempted extreme indifference murder because he
had acted in self-defense.
¶ 12 The jury convicted Madison of the three attempted extreme
indifference murder counts, the three corresponding crime of
3 violence with the use of a deadly weapon counts, and the POWPO
count.
¶ 13 On appeal, Madison contends that the court inadequately
instructed the jury on self-defense and attempted extreme
indifference murder and abused its discretion in formulating
answers to two jury questions. Additionally, Madison asserts that
the prosecutor committed misconduct during closing argument.
Lastly, Madison argues cumulative error.
II. Analysis
A. The Court’s Self-Defense Jury Instruction
¶ 14 Madison asserts that the court’s self-defense instruction was
contrary to People v. Jones, 675 P.2d 9 (Colo. 1984), and Riley v.
People, 266 P.3d 1089 (Colo. 2011), for two reasons: First, it did not
expressly tell the jury to consider the totality of the circumstances
and, second, did not instruct the jury to consider the number of
persons who reasonably appeared to present a threat to Madison
when determining the reasonableness of Madison’s fear of imminent
bodily harm or death and his use of the gun. We disagree.
¶ 15 (Madison also asserts that the court’s self-defense instruction
deprived him of his constitutional rights “to put on a complete
4 defense and be convicted beyond a reasonable doubt.” We are not
convinced, however, that the court’s self-defense instruction
lowered the prosecution’s burden of proof or directly implicated any
of Madison’s specific constitutional rights. See People v. Flockhart,
2013 CO 42, ¶ 20, 304 P.3d 227, 233 (“Only those errors ‘that
specifically and directly offend a defendant’s constitutional rights
are “constitutional” in nature.’” (quoting Wend v. People, 235 P.3d
1089, 1097 (Colo. 2010))).)
1. Standard of Review
¶ 16 A trial court “has substantial discretion in formulating the jury
instructions, so long as they are correct statements of the law and
fairly and adequately cover the issues presented.” People v.
Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009). Similarly, we
review a court’s “decision regarding supplemental instructions for
an abuse of discretion.” People v. Dinapoli, 2015 COA 9, ¶ 9, 369
P.3d 680, 682.
¶ 17 We will not reverse a conviction “if the [jury] instructions, read
as a whole, adequately inform the jury of the law.” Gallegos, 226
P.3d at 1115. But “[w]e review de novo whether a particular jury
5 instruction correctly states the law.” People v. Nerud, 2015 COA 27,
¶ 35, 360 P.3d 201, 207.
2. Additional Facts
¶ 18 Madison tendered the following “multiple assailants” jury
instruction, which his counsel said was premised on Riley:
The totality of the circumstances, including the number of persons reasonably appearing to be threatening the defendant, must be considered by the jury in evaluating the reasonableness of the defendant’s belief in the necessity of defensive action, and the reasonableness of the force used by him to defen[d] against the apparent danger.
Defense counsel argued that the “multiple assailants” language
could appear either in a standalone instruction or “a paragraph
folded into” the court’s self-defense instruction.
¶ 19 The prosecutor responded that, under the self-defense case
law, a “multiple assailants” instruction was unnecessary so long as
the court instructed the jury to “consider similar conditions and
circumstances and the totality of the circumstances.” The
prosecutor added that the court’s self-defense instruction could say
that “the jury must consider the totality of the circumstances, and
[the court] could go further to say including the number of people
6 present.” But the prosecutor said that “the case law cited in Riley”
did not require such language.
¶ 20 Defense counsel asked the court to tell the jury in the self-
defense instruction that it “must consider [the totality of the
circumstances] in evaluating the reasonableness of the defendant’s
belief and the necessity of defensive action and the reasonableness
of the force used by him to defend against the apparent danger” but
noted that he was “fine with amending [the language] or
abbreviating it” as the prosecutor suggested.
¶ 21 Noting that the underpinning of “self-defense is
reasonableness, and actions need to be reasonable,” the court
agreed with defense counsel that, “in determining what is
reasonable,” the jury should “look at all the circumstances.”
However, it said it did not need to include “a specific instruction
defining all the circumstances that go into that reasonableness
analysis.” The court explained that “the philosophy of jury
instructions in terms of the pattern instructions [is] to avoid” jury
instructions based upon “just case law.” Therefore, it ruled that it
would not provide the jury with the defense’s “multiple assailants”
instruction.
7 ¶ 22 Defense counsel persisted and again asked for a “multiple
assailants” instruction. He said that, “at a minimum,” the court
should change “other persons” to “other person or persons” in the
self-defense instruction because the incident “clearly [involved]
more than one person.”
¶ 23 The court agreed:
THE COURT: So if in the second paragraph we say a person is justified in using physical force against another person or persons without retreating, that’s what you’re asking for?
[DEFENSE COUNSEL]: And then repeating the “or persons” at the next juncture where the comment is.
THE COURT: So without retreating in order to defend himself against what he considers the use or imminent use of unlawful physical force by that other person or persons, yes?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: I can do that.
¶ 24 The court provided the jury with the following self-defense
instruction:
A person is justified in using physical force upon another person or persons without first retreating in order to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person or persons, and he may use
8 a degree of force which he reasonably believes to be necessary for that purpose.
However, a person is not justified in using physical force if he is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the other person nevertheless continues or threatens the use of unlawful physical force.
The court’s initial aggressor language follows the Colorado Model
Criminal Jury Instructions. See COLJI-Crim. H:13 (2022).
3. The Court Did Not Err in Formulating the Initial Aggressor Language in the Self-Defense Instruction
¶ 25 Madison contends that the self-defense instruction was
erroneous because it did not direct the jury to consider the totality
of the circumstances and the number of persons who reasonably
appeared to be threatening Madison. We disagree.
¶ 26 While the model instructions are not “a safe harbor that
insulates instructional error from reversal,” they “have been
approved in principle by [the supreme] court and serve as beacon
lights to guide trial courts.” Galvan v. People, 2020 CO 82, ¶ 38,
476 P.3d 746, 756-57 (quoting Garcia v. People, 2019 CO 64, ¶ 22,
9 445 P.3d 1065, 1069). Further, “it is unnecessary to give an
instruction that is encompassed in other instructions given by the
court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d,
28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74-75, 78
(Colo. 1990) (concluding that the defendant was not entitled to an
“apparent necessity” jury instruction because the trial court’s self-
defense instruction tracked the statute and adequately apprised the
jury that it must consider “the totality of circumstances . . . in
evaluating the reasonableness of the accused’s belief in the
necessity of defensive action” (quoting Jones, 675 P.2d at 14)); Hare
v. People, 800 P.2d 1317, 1319 (Colo. 1990) (holding that the
court’s self-defense instruction encompassed the defense’s tendered
instruction).
a. Jones and Riley
¶ 27 Madison contends that, “[w]hile [the model] instructions are
normally adequate, a supplemental or modified instruction [was]
necessary to adequately instruct the jury to comply with Jones and
Riley.” He argues that Jones and Riley require the court to instruct
the jury that it must consider the “totality of circumstances,
including the number of persons reasonably appearing to be
10 threatening the accused,” in self-defense cases involving multiple
assailants. Jones, 675 P.2d at 14. We disagree with Madison’s
reading of the case law.
¶ 28 The defendant in Jones testified that the victim and his
associates were “about to attack him and . . . only after [the victim]
struck the first blow and the [victim’s associates] entered the
encounter did [the defendant] use his blackjack in self-defense.” Id.
The supreme court held that, given these facts, the district court
erred because its self-defense jury instruction “omitted any
reference to the defendant’s right to use force” to defend himself
against the victim’s associates. Id. at 13.
¶ 29 In Riley, the supreme court clarified its holding in Jones. The
defendant in Riley had used a knife, arguably in self-defense, after
two people physically attacked him. 266 P.3d at 1091. The Riley
court explained that Jones does not require that the court give a
specific “multiple assailants” instruction “in every case involving
both multiple assailants and self-defense.” Id. at 1094. Self-
defense instructions will satisfy Jones so long as they “properly
direct the jury to consider the totality of the circumstances during
its deliberations on reasonableness.” Id. Because the jury
11 instructions in Riley were “broad enough to encompass [the
defendant]’s multiple assailants theory of defense,” the supreme
court concluded that the district court’s refusal to provide the
defense’s tendered “multiple assailants” instruction did not run
afoul of Jones. Id. at 1095.
¶ 30 In addition, in People v. Roberts-Bicking, the defendant claimed
that the victims, who had previously threatened to physically harm
him, entered his “bedroom area” and moved towards him. 2021
COA 12, ¶¶ 4-9, 490 P.3d 1128, 1131-32. The defendant shot one
of them and punched the other. Id. Although the district court
rejected the defense’s tendered “multiple assailants” instruction, it
told the jury, in response to a jury question, that it must consider
the “totality of the circumstances” when making its reasonableness
determination. Id. at ¶¶ 13-16, 490 P.3d at 1132-33.
¶ 31 The division in Roberts-Bicking held that, “while the initial
[model] instructions may have been inadequate,” in telling the jury
to consider the totality of the circumstances, “the supplemental
instruction provided in response to the jury’s question cured any
deficiency.” Id. at ¶¶ 26-27, 490 P.3d at 1134-35. The division
premised its holding on the Riley court’s conclusion that “[a]ll that
12 is required [of jury instructions] is that the jury be instructed to
consider the reasonableness of the defendant’s beliefs and actions
under the totality of the circumstances.” Roberts-Bicking, ¶ 28, 490
P.3d at 1135 (citing Riley, 266 P.3d at 1094).
b. The Initial Aggressor Instruction
¶ 32 Although the court’s initial aggressor instruction did not refer
to “person or persons,” we conclude that it sufficiently addressed
Madison’s self-defense theory for three reasons. See Riley, 266 P.3d
at 1095.
¶ 33 First, it tracked the model jury instructions in effect at the
time of trial. See COLJI-Crim. H:13 (2022); Galvan, ¶ 38, 476 P.3d
at 756-57.
¶ 34 Second, the court’s self-defense instruction did not limit the
jury’s consideration to one person’s conduct, even though the
instruction’s initial aggressor language only referred to a “person.”
Indeed, in the self-defense instruction, the court told the jury it had
to find what Madison “reasonably believe[d]” when he evaluated the
threat posed by other “person or persons” and the appropriateness
of his degree of force.
13 ¶ 35 Moreover, the court’s first instruction said the jury must
“consider all the evidence in light of” life experiences, “[n]o single
instruction describes all the law,” and it must consider the court’s
instructions “together as a whole.” See Gallegos, 226 P.3d at 1115.
The attempted extreme indifference murder instruction and the
deadly weapon instruction also directed the jury to reach its
conclusions only “[a]fter considering the evidence.”
¶ 36 Third, the evidence and the lawyers’ arguments made it
unlikely that a reasonable juror could have thought it was barred
from considering a situation involving multiple attackers when
evaluating the reasonableness of Madison’s belief that he was
threatened with the imminent use of unlawful physical force. See
Boyde v. California, 494 U.S. 370, 383 (1990) (“[W]e think it
unlikely that reasonable jurors would believe the court’s
instructions transformed all of this ‘favorable testimony into a
virtual charade.’” (quoting California v. Brown, 479 U.S. 538, 542
(1987))). For example, defense counsel repeatedly told the jury that
Madison acted in response to the threat from the victims. In
addition, the prosecutor reminded the jury to consider “the totality
14 of the circumstances, not just one fact here, one fact there,” but
“[e]verything that [Madison] perceived at the time.”
¶ 37 Accordingly, the court did not err when it instructed the jury
on self-defense.
B. The Court’s Attempted Extreme Indifference Murder Instruction
¶ 38 Madison contends that the attempted extreme indifference
murder instruction “was erroneous because it did not specify the
jury could only convict Madison of extreme indifference murder for
a particular named victim if it found he had attempted to take the
life of that named victim (even if he did not intend to take the life of
that victim).” We disagree.
1. Preservation and Standard of Review
¶ 39 The parties agree that Madison did not preserve his challenge
to the attempted extreme indifference murder instruction.
Therefore, we review for plain error. See People v. Hamilton, 2019
COA 101, ¶ 14, 452 P.3d 184, 191.
¶ 40 “Under Crim. P. 52(b), plain error occurs when there is (1) an
error, (2) that is obvious, and (3) that so undermines the
fundamental fairness of the trial itself as to cast serious doubt on
15 the reliability of the judgment of conviction.” Cardman v. People,
2019 CO 73, ¶ 19, 445 P.3d 1071, 1079.
¶ 41 At the jury instruction conference, the court explained that it
combined the instructions for attempt and extreme indifference
murder because “[s]ometimes it’s confusing when the jury has
separate instructions as to the attempt and separate instructions as
to the murder in the [first degree].” Madison’s counsel did not
object to the combined instruction.
¶ 42 The court provided the jury with the following instruction on
attempted extreme indifference murder:
The elements of the crime of Criminal Attempt to Commit Murder in the First Degree (extreme indifference) are:
1. That the defendant,
2. in the State of Colorado, at or about July 28, 2021,
3. knowingly,
4. engaged in conduct constituting a substantial step toward the commission of Murder in the First Degree (extreme indifference).
A “substantial step” is any conduct, whether act, omission, or possession, which is strongly
16 corroborative of the firmness of the actor’s purpose to complete the commission of the offense.
The elements of the crime of Murder in the First Degree (extreme indifference) are:
4. under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally,
5. engaged in conduct which created a grave risk of death to a person, or persons, other than himself, and
6. thereby caused the death of another.
After considering the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of Criminal Attempt to Commit Murder in the First Degree (extreme indifference).
After considering the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of Criminal Attempt to Commit Murder in the First Degree (extreme indifference).
See COLJI-Crim. G2:01 (2022); COLJI-Crim. 3-1:04 (2022).
17 ¶ 43 In addition, the court gave the jury an instruction defining
“[u]niversal malice” as “conduct that, by its very nature and the
circumstances of its commission, evidences a willingness to take
human life indiscriminately, without knowing or caring who the
victim may be or without having an understandable motive or
provocation.” That instruction tracked the model instruction. See
COLJI-Crim. 3-1:04 cmt. 6 (2022).
3. The Court Did Not Err in Formulating the Attempted Extreme Indifference Murder Instruction
¶ 44 A person commits first degree murder (extreme indifference) if,
“[u]nder circumstances evidencing an attitude of universal malice
manifesting extreme indifference to the value of human life
generally, he knowingly engages in conduct which creates a grave
risk of death to a person, or persons, other than himself, and
thereby causes the death of another.” § 18-3-102(1)(d), C.R.S.
2024.
¶ 45 Extreme indifference murder is different from other forms of
homicide in that the actor must have demonstrated “a willingness
to take human life indiscriminately, without knowing or caring who
the victim may be or without having an understandable motive or
18 provocation.” Candelaria v. People, 148 P.3d 178, 181-82 (Colo.
2006). To knowingly put “a person, or persons,” § 18-3-102(1)(d), at
grave risk of death “necessarily comprehends killing acts that put at
grave risk a number of individuals not targeted by the defendant, as
well as acts putting at risk a single victim,” Candelaria, 148 P.3d at
182-83.
¶ 46 The Candelaria court squarely addressed the applicability of
extreme indifference murder when the defendant’s conduct put
numerous people at risk:
Although secreting an explosive device in an airplane to kill one of the passengers is certainly a murderous act directed at a particular, intended victim, it is not directed solely at the intended victim. Because it is an act gravely endangering the other passengers as well, it constitutes conduct evidencing an extreme indifference to the value of human life generally.
Id. at 182.
¶ 47 Madison contends that the court’s extreme indifference
instruction was erroneous because it did not “track the [c]omplaint
and information, which specified the victim for each count of
attempted extreme indifference murder.” He argues that a proper
attempted extreme indifference murder instruction must say that,
19 to convict the defendant, the jury must find, along with the other
elements, that the defendant “engaged in conduct which created a
grave risk of death to a person, or persons, other than himself, and
thereby attempted to cause the death of [named victim].” (Emphasis
added.) We disagree.
¶ 48 The court’s extreme indifference instruction tracks the
criminal attempt, § 18-2-101(1), C.R.S. 2024, and first degree
murder, § 18-3-102(1)(d), statutes. See Galvan, ¶ 37, 476 P.3d at
756 (“A jury instruction that tracks the exact language of a statute
is unlikely to mislead the jury on the state of the law.” (quoting
People in Interest of J.G., 2016 CO 39, ¶ 42, 370 P.3d 1151, 1163)).
Further, the title of each attempted extreme indifference murder
verdict form specified a different victim.
¶ 49 Madison also contends that the attempted extreme
indifference murder instruction, “taken to its logical conclusion,”
would mean that “the prosecution could name infinite victims in the
[c]omplaint and [i]nformation — even those unrelated to the case —
and secure a conviction against a defendant for the attempted
murder of all of those victims so long as the jury found a defendant
attempted to kill ‘another.’” We disagree.
20 ¶ 50 The supreme court held in Montoya v. People that conscious
but indiscriminate “shooting into a crowd of people presents a
quintessential example of circumstances evidencing a willingness to
take life indiscriminately and therefore, in the language of the
statute, evidencing universal malice manifesting extreme
indifference to the value of human life generally.” 2017 CO 40, ¶
21, 394 P.3d 676, 684; see People v. Anderson, 2019 CO 34, ¶ 14,
442 P.3d 76, 79 (explaining that the first degree murder (extreme
indifference) statute singles “out for special treatment those acts
causing the death of another under circumstances evidencing a
willingness to take life indiscriminately — not acts having an actual
effect of endangering a number of lives, or even one life,
indiscriminately”). Further, jury instruction twelve told the jury it
could find Madison “guilty or not guilty of any one or all of the
offenses charged.”
¶ 51 Thus, the court did not err, much less plainly err, in drafting
the attempted extreme indifference murder jury instruction.
21 C. The Court Did Not Abuse Its Discretion by Providing Its Supplemental Instruction in Response to Jury Questions Numbers One and Two
¶ 52 Madison contends that the court abused its discretion by
answering no to jury question number one: “Because these
attempted murder charges are specific to three individuals . . .
[d]oes the defendant have to be attempting murder of one or more of
the specific people in order for a substantial step towards Murder in
the first degree (extreme indifference) to be true?” He also contends
that the court erroneously referred the jury back to instruction
twelve in response to jury question number two, “Are we allowed to
find [Madison] guilty of three, two or only one of the three counts of
attempted murder (extreme indifference)?”
¶ 53 When a jury asks a question, an additional instruction is
“often appropriate” unless
(1) the jurors can be adequately informed by directing their attention to some portion of the original instructions;
(2) the request concerns matters not in evidence or does not pertain to the law of the case; or
(3) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.
22 People v. Frye, 2014 COA 141, ¶ 26, 356 P.3d 1000, 1005 (quoting
Copeland v. People, 2 P.3d 1283, 1288 (Colo. 2000)).
1. Jury Question Number One
a. Standard of Review
¶ 54 We review the court’s response to jury question number one
for an abuse of discretion. See People v. Black, 2020 COA 136,
¶ 13, 490 P.3d 891, 895. “A trial court does not abuse its
discretion unless its decision was manifestly arbitrary,
unreasonable, or unfair or was based on an erroneous
understanding of the law.” People v. Perez, 2024 COA 94, ¶ 34, 559
P.3d 652, 660. “In assessing whether a trial court’s decision is
manifestly unreasonable, arbitrary, or unfair, we ask not whether
we would have reached a different result but, rather, whether the
trial court’s decision fell within the range of reasonable options.”
People v. Archer, 2022 COA 71, ¶ 23, 518 P.3d 1143, 1149-50
(quoting Hall v. Moreno, 2012 CO 14, ¶ 54, 270 P.3d 961, 973).
b. Additional Facts
¶ 55 The court told the attorneys that its initial inclination was to
respond no to question number one. The prosecutor agreed, but
defense counsel asserted that “the answer should be yes.”
23 ¶ 56 The court said that Anderson supported its “first response” of
answering no because the case held that “there can be named
victims that are in danger based upon the conduct, but there
doesn’t need to be any specific targeting of or any specific intent to
harm any individuals.” Further, the court said that Anderson
highlighted “the difference between after deliberation or some other
theory of murder in the [first degree] as opposed to extreme
indifference.” The court also said that People v. Reynolds, 252 P.3d
1128 (Colo. App. 2010), and Candelaria supported a no response.
¶ 57 Defense counsel argued that Anderson was distinguishable
because shooting a gun five times was “nothing like secreting a
bomb on an airplane” — an example of “evidence objectively
demonstrating a willingness to take life indiscriminately” noted in
that case. See Anderson, ¶ 13, 442 P.3d at 78-79. For this reason,
defense counsel asked the court to “either answer yes [to jury
question one] or not send an answer back [to the jury] and tell the
jury that they have the instructions that they need.”
¶ 58 The court disagreed and decided to answer no to jury question
number one:
24 I think if a jury is led to believe there needs to be a specific target involved that essentially changes the theory, changes the charge to either a specific intent-like charge or even a knowing charge as to the specific individual as opposed to for lack of a better description a spree charged like this where there’s multiple rounds being fired, allegedly indiscriminately, endangering multiple people, and there’s named people present. And the same thing as a bomb and naming the people on the plane as the victims.
c. The Court Did Not Abuse Its Discretion by Answering No to Jury Question Number One
¶ 59 Madison asserts that the court’s answer to jury question
number one “was a clear misstatement of an essential element of
the crime; the jury did have to find Madison attempted to kill the
named victim in order to convict him.” We disagree.
¶ 60 Unlike intentional first degree murder after deliberation, “the
crime of extreme indifference first degree murder does not require
proof that the defendant intended to cause the death of another.”
Reynolds, 252 P.3d at 1133. Instead, “it requires proof that the
defendant knowingly engaged in conduct that created a grave risk
of death to one or more persons and demonstrated extreme
indifference to the value of human life generally.” Id.
25 ¶ 61 To convict a defendant of attempted extreme indifference
murder, “there must be evidence from which a trier of fact can find
that the actor was aware he was engaging in conduct strongly
corroborative of the firmness of his purpose to complete the
commission of the crime of extreme indifference murder.” Montoya,
¶ 17, 394 P.3d at 683. The commission of the crime would be
complete “only if the defendant caused the death of another by
knowingly engaging in conduct creating a grave risk of death to a
person or persons other than himself . . . under circumstances
evidencing an attitude of universal malice manifesting extreme
indifference to the value of human life generally.” Id. at ¶ 17, 394
P.3d at 683-84.
¶ 62 The Anderson court concluded that reasonable jurors could
find that the defendant’s “flurry of gunfire aimed in [the officer’s]
direction,” Anderson, ¶ 17, 442 P.3d at 80, demonstrated a
willingness to take life indiscriminately, “either because it
objectively evidenced a willingness to kill as many as thirteen
bystanders within range of the defendant’s indiscriminate shooting,
or simply because it evidenced a willingness to kill whoever was
pursuing him, in order to draw return fire and be killed himself,” id.
26 at ¶ 20, 442 P.3d at 80. The court noted the evidence from which
the jury “could find that the defendant’s gunfire was not only
capable of reaching” other bystanders but that it “practically
reached” a “highway . . . upon which he had only minutes before
necessarily observed other travelers.” Id.
¶ 63 Accordingly, the jury was not required to find that Madison
attempted to kill each victim before it could convict him of the three
counts of attempted extreme indifference murder. See id. at ¶ 20,
442 P.3d at 80-81; Candelaria, 148 P.3d at 183 (holding that “the
evidence was sufficient to permit a finding that [the defendant and
his associates] were aware their shooting was practically certain to
cause death and was carried out under circumstances evidencing a
willingness to take the lives of others without knowing or caring
who they were”).
¶ 64 Thus, we conclude that the court acted within its discretion
when it answered “no” to jury question number one. See Black,
¶ 13, 490 P.3d at 895; see also Frye, ¶ 22, 356 P.3d at 1005.
27 2. Jury Question Number Two
a. Additional Facts
¶ 65 The prosecutor asserted that the court should answer yes to
jury question number two. Defense counsel argued that the answer
to the question was “adequately described in the instruction packet
that was already provided by the [c]ourt to the jury” and that the
court “could just indicate to the jury that they have all the
instructions they need.”
¶ 66 The court agreed with defense counsel and said it would refer
the jury to jury instruction twelve, which tracked the model
In this case a separate offense is charged against the defendant in each count of the information. Each count charges a separate and distinct offense and the evidence and the law applicable to each count should be considered separately, uninfluenced by your decision as to any other count. The fact that you may find the defendant guilty or not guilty of one of the offenses charged, should not control your verdict as to any other offense charged against the defendant.
The defendant may be found guilty or not guilty of any one or all of the offenses charged.
28 See COLJI-Crim. E:12 (2022). Defense counsel said this response
“ma[de] sense.” Accordingly, the court responded to jury question
number two by referring the jury to jury instruction twelve.
b. Madison Invited Any Error Regarding Jury Question Number Two
¶ 67 Madison contends that the court’s answer to jury question
number two was “erroneous and obvious because it was apparent
Instruction No. 12 could not clarify the jury’s confusion; it did not
explain the jury had to find Madison had to attempt to take the life
of the named victim.”
¶ 68 We conclude that Madison invited any error regarding the
court’s response to jury question number two because the court
adopted the defense’s proposed response, and defense counsel
expressly agreed with the court’s language.
¶ 69 “The invited error doctrine prevents a party from appealing an
error that he or she invited or injected into the case.” People v.
Butler, 251 P.3d 519, 522 (Colo. App. 2010). It “is narrow and
applies only to errors in trial strategy but not to errors that result
from oversight or attorney incompetence.” Id. “[I]nvited error bars
29 relief on direct appeal.” People v. Tee, 2018 COA 84, ¶ 27, 446 P.3d
875, 881.
¶ 70 Defense counsel invites any error in a jury instruction or an
answer to a jury question by actively participating in drafting it.
See People v. Jacobson, 2017 COA 92, ¶¶ 48-52, 474 P.3d 1222,
1230 (holding that defense counsel invited the alleged error by
“actively participat[ing]” in drafting the challenged instruction and
answer to the jury question and by acquiescing in the instruction);
People v. Hoover, 165 P.3d 784, 796 (Colo. App. 2006) (“Active
participation in the preparation of a response to a jury question, or
express agreement with it, bars the participant from arguing that
the response constitutes error.”).
¶ 71 Even if defense counsel did not actively participate in drafting
the challenged jury instruction, the invited error doctrine applies if
defense counsel “expressly acquiesce[d]” in it. Horton v. Suthers, 43
P.3d 611, 619 (Colo. 2002); see Butler, 251 P.3d at 523 (Defense
counsel’s response to the court’s instruction, “That’s fine with me,”
invited the alleged error and precluded the defendant “from
claiming on appeal that the court acted in error.”).
30 ¶ 72 Because Madison’s counsel participated in the formulation of
the court’s response to jury question number two and then told the
court the response “ma[de] sense,” we hold that Madison is barred
from challenging the response on appeal. See Hoover, 165 P.3d at
796.
D. The Prosecution Did Not Commit Misconduct During Closing Argument
¶ 73 Madison contends that the prosecutor committed misconduct
during closing argument when she described how an initial
aggressor can effectively communicate his or her intent to withdraw
from the encounter and thereby establish that his or her use of
physical force was justified. See § 18-1-704(3)(b), C.R.S. 2024. We
disagree.
¶ 74 “We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct.” People v. Licona-Ortega, 2022 COA 27,
¶ 85, 511 P.3d 721, 736. “First, we determine whether the
prosecutor’s conduct was improper based on the totality of the
circumstances.” Id. “Second, we decide whether the misconduct
31 warrants reversal under the applicable standard.” Id. at ¶ 85, 511
P.3d at 736-37.
¶ 75 “When determining whether a prosecutor’s statements were
improper and whether reversal is warranted, we may consider the
language used, the context of the statements, the strength of the
evidence, whether the prosecutor improperly appealed to the jurors’
sentiments, whether the misconduct was repeated, and any other
relevant factors.” People v. Liebler, 2022 COA 21, ¶ 51, 510 P.3d
548, 559.
¶ 76 The parties agree that Madison did not preserve his
prosecutorial misconduct argument. See Licona-Ortega, ¶ 88, 511
P.3d at 737. And “[p]rosecutorial misconduct rarely constitutes
plain error.” People v. Carter, 2015 COA 24M-2, ¶ 53, 402 P.3d
480, 491.
¶ 77 The prosecutor discussed self-defense and the initial aggressor
exception during her initial closing argument. The prosecutor said:
We discussed this in jury selection as well. If you — I don’t want to use the word provoked because that may connote something different legally, but if you started the altercation, if you were the first person to use force in an
32 altercation, you may not then claim self- defense unless you communicate to the people with whom you’re engaged in this encounter that you know what, I’m done. I started this altercation. Things have escalated to an uncomfortable level. I’m done. I’m out of here. If those people then persist in their use of force, you may then claim self-defense. Hopefully that makes sense.
Here, of course, our position is that [Madison] was the initial aggressor. He was the first person to begin the use of force in this confrontation.
Defense counsel did not object.
3. The Prosecutor Did Not Engage in Misconduct
¶ 78 “[A] prosecutor must have ‘wide latitude in the language and
presentation style used to obtain justice,’” but “while a prosecutor is
‘free to strike hard blows,’ she ‘is not at liberty to strike foul ones.’”
People v. Buckner, 2022 COA 14, ¶ 19, 509 P.3d 452, 458 (quoting
Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005)).
¶ 79 “Closing argument may properly include the facts in evidence
and the reasonable inferences drawn from those facts, as well as
the law on which the jury has been instructed.” Id. at ¶ 18, 509
P.3d at 458. “[B]ecause arguments delivered in the heat of trial are
not always perfectly scripted reviewing courts accord prosecutors
33 the benefit of doubt where remarks are ‘ambiguous’ or simply
‘inartful.’” People v. McBride, 228 P.3d 216, 221 (Colo. App. 2009)
(citations omitted) (first quoting Donnelly v. DeChristoforo, 416 U.S.
637, 646-47 (1974); and then quoting Domingo-Gomez, 125 P.3d at
1051).
¶ 80 “A prosecutor must not ‘intentionally misstate the evidence or
mislead the jury as to the inferences it may draw’ from that
evidence.” Buckner, ¶ 18, 509 P.3d at 458 (quoting Domingo-
Gomez, 125 P.3d at 1049). In addition, “[i]t is improper for counsel
to misstate the law or ‘misinterpret[] for the jury how the law should
be applied to the facts’ during closing argument.” People v. Monroe,
2020 CO 67, ¶ 16, 468 P.3d 1273, 1276 (quoting People v. Sepeda,
581 P.2d 723, 732 (Colo. 1978)).
¶ 81 Madison contends that the prosecutor committed misconduct
by telling the jury it “could only find Madison withdrew from the
altercation if he verbally communicated his withdrawal to the three
assailants. The prosecutor explained by example Madison had to
communicate his withdrawal verbally.” We disagree because
Madison does not accurately characterize the challenged statement.
34 ¶ 82 First, the prosecutor never said that Madison was required to
communicate his withdrawal orally. The prosecutor indeed said
that a person who “started the altercation” may not claim self-
defense unless the person communicated, “I’m done. I started this
altercation. Things have escalated to an uncomfortable level. I’m
done. I’m out of here.” But the prosecutor said neither that the
initial aggressor must convey this message orally nor that the
aggressor cannot communicate the message through conduct. The
message that the prosecutor described can be expressed either
through words or conduct.
¶ 83 Second, the prosecutor did not provide an example of the
words Madison needed to utter to inform the victims that he was
withdrawing from the altercation. Rather, the prosecutor made the
point that any assertion, whether through words or conduct, that
communicated, “I’m done. I’m out of here,” would signal the
person’s withdrawal from the altercation. Even if the prosecutor’s
words were unclear, we do not “lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging meaning
or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.”
35 People v. Gomez-Garcia, 224 P.3d 1019, 1025 (Colo. App. 2009)
(quoting Donnelly, 416 U.S. at 646-47).
¶ 84 Accordingly, the prosecutor’s argument was consistent with
the statutory “initial aggressor” language. § 18-1-704(3)(b)
(providing that a person is not justified in using physical force in
self-defense if he is the initial aggressor except that his “use of
physical force upon another person under the circumstances is
justifiable if he . . . withdraws from the encounter and effectively
communicates to the other person his . . . intent to do so, but the
latter nevertheless continues or threatens the use of unlawful
physical force”) (emphasis added).
¶ 85 For these reasons, the prosecutor did not engage in
misconduct. See Licona-Ortega, ¶ 85, 511 P.3d at 736.
E. The Cumulative Error Doctrine Does Not Apply
¶ 86 Generally, errors “afford no grounds for reversal of a judgment
where the guilt of the defendant has been clearly proven.” Oaks v.
People, 371 P.2d 443, 445-46 (Colo. 1962). However, we will
reverse if the errors “result in ‘prejudice to the substantial rights of
the defendant.’” Id. at 446 (quoting Cliff v. People, 269 P. 907, 910
(Colo. 1928)); see also Howard-Walker v. People, 2019 CO 69, ¶ 25,
36 443 P.3d 1007, 1011 (“Stated simply, cumulative error involves
cumulative prejudice.”).
¶ 87 “[R]egardless of whether any error was preserved or
unpreserved,” reversal is “warranted when numerous errors in the
aggregate show the absence of a fair trial, even if individually the
errors were harmless or did not affect the defendant’s substantial
rights.” Howard-Walker, ¶ 26, 443 P.3d at 1012; see also People v.
Lucero, 615 P.2d 660, 666 (Colo. 1980) (reversing the judgment
because “the cumulative effect of the[] errors and defects
substantially affected the fairness of the trial proceedings and the
integrity of the fact-finding process”). “[T]he question is not whether
the errors were ‘brief’ or ‘fleeting’ but whether, viewed in the
aggregate, the errors deprived the defendant of a fair trial.”
Howard-Walker, ¶ 40, 443 P.3d at 1014. “A defendant, although
not entitled to a perfect trial, has a constitutional right to receive a
fair trial.” People v. Rivera, 56 P.3d 1155, 1168 (Colo. App. 2002).
¶ 88 We identified at most one error. But as we explained above,
defense counsel invited this error, which concerned the court’s
response to jury question number two. Supra Part II.C.2.b.
Madison is not entitled to reversal of his conviction based on an
37 invited error. See Tee, ¶ 27, 446 P.3d at 881. In any event, “a
single error is insufficient to reverse under the cumulative error
standard.” People v. Thames, 2019 COA 124, ¶ 69, 467 P.3d 1181,
1194.
¶ 89 Thus, we conclude that there is no cumulative error.
III. Disposition
¶ 90 The judgment of conviction is affirmed.
JUDGE PAWAR and JUDGE LUM concur.